O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?
Short answer: Senators swear an oath to uphold the Constitution. Of course they are obligated to determine whether a bill they are considering is constitutional. Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?
Somewhat longer answer: The Constitution doesn’t vest the authority to determine the constitutionality of legislation in any single branch of the government. In fact, not only does the Constitution not grant the judiciary the exclusive power to consider the constitutionality of legislation, it doesn’t speak of judicial review at all. I think that judicial review is implicit in the Constitution, for the reasons stated by Chief Justice Marshall in Marbury v. Madison. But there is no contradiction between allowing the Court to exercise its authority in its own sphere (i.e., when a lawsuit comes before the Court) while the other branches determine the constitutionality of legislation in their own spheres. At least since the late 1950s (Cooper v. Aaron), the Supreme Court has asserted that if an elected official defies a Supreme Court precedent, that official is violating his oath to uphold the Constitution. But even if we accept that it would be a dereliction of a Senator’s duty to vote for a law that he knew the Court would deem unconstitutional, I don’t know of any reason why a Senator should vote for a law that he deems unconstitutional, even if the Supreme Court would uphold such a law; no defiance is involved in such an instance, just an independent assessment of constitutionality. Regardless, it’s hardly the case, as Lithwick suggests, that a Senator should ignore constitutional issues, vote completely based on policy preference, and wait for the courts to sort things out.
H/T: Reader SteveMG.
UPDATE: I should add that in the Supreme Court itself has virtually delegated the determination of constitutionality of various federal legislation to Congress: see the Commerce Clause, the General Welfare Clause, and the non-delegation doctrine. The constitutionality of legislation enacted under any of these provisions generally depends on whether Congress believes it has complied with the provisions (though there has been a wee bit of “backsliding” in the Commerce Clause realm, over the objections of four Justices).
FURTHER UPDATE: Further wisdom from Lithwick:
It came to a surreal head when Sen. Chuck Grassley asked Kagan directly whether “the Second Amendment codif[ied] a pre-existing right or was it a right created by the Constitution?”—a dog whistle, I gather—to the “Christian Reconstructionist” argument that the right to bear arms comes from God. I guess by way of Moses and Joshua.
Huh? It’s pretty obvious to me that Grassley is referring to one of two possibilities: (1) More likely, the question of whether the Second Amendment codified a pre-existing Anglo-American common law right to bear arms; or (2) Less likely, but still possible, the question of whether the right to bear arms is a “natural right”. Even if it’s the latter, you hardly have to be a Christian Reconstructionist to believe in natural rights; the framers did, and none were. Indeed, you don’t even have to believe in God; I have quite a few libertarian acquaintances who believe in natural rights, and none of them are theists.
ANOTHER UPDATE: Irony alert! Back in 2008, Lithwick wrote, “The great tragedy of the Bush administration was that it operated for years as though the Constitution was something nobody really cares about.” You know, I was concerned that the Bush Administration wasn’t paying attention to the constitutionality of its actions. But then I thought about it further, and realized how I felt about it on the rare occasions when the Administration did seem to restrain its actions based on constitutional considerations. How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?
Blue says:
It’s a very interesting, and unintended I’m sure, insight into how Lithwick views governance (as well as how shallow her understanding of American political theory is).
September 22, 2010, 9:31 pmrpt says:
Of course, Paul Ryan has already declared that the dreaded reconciliation process must be used once the GOP retakes control of Congress. Other Constitutional changes are no doubt on the way.
September 22, 2010, 9:32 pmkrs says:
In law school, I remember having thoughts like that. Then I would think a little further and remember otherwise.
I’m not always impressed with Lithwick’s writing, but I’ve always thought of her as a bit smarter than today’s piece would seem to suggest.
September 22, 2010, 9:34 pmSteveMG says:
Not to be overly dramatic (moi?) or rude (truly) but this is an unbelievably ignorant statement by Ms. Lithwick in her capacity as senior editor and legal reporter for Slate.
Yes, off with her head! (Is that constitutional? Never mind, we’ll worry about that later.)
September 22, 2010, 9:36 pmJohnO says:
You’re my boy, BLUE!!!!
September 22, 2010, 9:48 pmSteve says:
I don’t think Lithwick’s statement is as dumb as O’Donnell’s litmus test. “I’ll base my vote on whether the bill is constitutional!” Brilliant.
September 22, 2010, 9:55 pmClifton says:
I agree that it would be preferrable for legislators to consider the Constitutionality of laws before passage, but I’m curious how this is reconciled with Federalist #78, which seems to clearly establish a point of view that legislators should reflect the people, regardless of Constitutionality. Obviously, a Federalist paper isn’t the Constitution proper, but the POV of those involved would seem to be more complex than this post suggests.
September 22, 2010, 9:57 pmDavid Bernstein says:
Where do you get that from Federalist 78?
September 22, 2010, 9:59 pmfnook says:
Another shallow point scored by Professor Bernstein. I wouldn’t be surprised if O’Donnell were to vote against (a hypothetical) effort to repeal the Hyde Amendment on grounds that she, personally, believes abortion is unconstitutional. Sure, she’s allowed to do that, but that doesn’t mean the rest of us can’t tell her she’s wrong. Same goes for health care reform, or other more salient and realistic possibilities.
September 22, 2010, 10:01 pmJRG says:
Isn’t Lithwick’s reasoning equally applicable to the executive branch? By her reasoning, FBI agents should act without regard to whether their actions are constitutional: wiretap that phone or bust down that door now, and let the courts sort it out later. Somehow I doubt she’d agree with that outcome.
It’s almost enough to make one wonder whether Lithwick was just trying to score cheap rhetorical points.
September 22, 2010, 10:01 pmJeffDG says:
In reality, the Constitution provides for only one officer the responsibility to “preserve, protect and defend the Constitution” within its own text…
September 22, 2010, 10:02 pmClifton says:
I was focused on this section:
“If it be said that the legislative body are themselves thee constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that
this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more
rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the atter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”
Maybe I’m reading this incorrectly?
September 22, 2010, 10:21 pmPerseus says:
Lithwick takes judicial supremacy to a whole new level. The judiciary doesn’t just get the final say in interpreting the Constitution, but the only say.
(The passage cited from the Fed. 78 deals with the question of whether Congress is the final arbiter of the extent of its own powers. I don’t see how it is evidence that Congress should reflect the will of the people regardless of constitutionality.)
September 22, 2010, 10:35 pmClifton says:
Don’t get me wrong–I think Lithwick’s exclusivity argument is bad, but I think there’s a nuanced area between ‘final say’ and ‘only say’. If another body has the final say, to what degree can the legislature be said to have ANY say? Ultimately, it doesnt., not in a meaningful way. It’s a sort of self-policing guide, but in the end, irrelevant, no?
September 22, 2010, 10:40 pmDavid Bernstein says:
No. For example, if the president vetoes a law because he thinks it’s unconstitutional, and the veto is sustained, the Supreme Court has no say, the law never goes into effect, so the USSC never gets an opportunity to weigh in.
September 22, 2010, 10:41 pmgab says:
What I took Lithwick’s comments to mean is this. I am sure that every legislator already factors the constitutionality of the legislation into his decision. But, once the legislation becomes law, the courts become the final arbiter of constitutionality.
Think about it this way – if you asked a Senator who voted to pass a bill whether he thought it was constitutional, would any of them ever say no?
September 22, 2010, 10:43 pmShelbyC says:
No. If congress thinks a bill is unconstitutional, it gets the final say, right?
September 22, 2010, 10:44 pmClifton says:
Good point.
September 22, 2010, 10:48 pmPerseus says:
Congress, like the other branches, is designed to help “refine and enlarge” public opinion (as Madison put it in Fed. 10), not simply reflect it, and part of the refinement process is testing it against the Constitution. Since it is the starting point of legislation, Congress has a duty to pass only legislation that it regards as constitutional (which means a bill desired by the majority of the people may die in Congress on constitutional grounds). Similarly, the executive has a duty to veto any bill that he regards as unconstitutional (as Madison and other presidents have done).
September 22, 2010, 10:51 pmShelbyC says:
This is especially odd given that 130 years ago, SCOTUS (Cruikshank) said that the right to bear arms was, in fact, a pre-existing right, not one granted by the Constitution.
September 22, 2010, 10:54 pmHastings says:
“Congress is a ‘they,’ not an ‘it.’”
I don’t read Lithwick as suggesting that a Senator could rightfully vote for a bill that the entire Congress understood to be unconstitutional. Rather, I think she means that there will often be good faith disagreement about the constitutionality of a certain bill. It would be strange to argue that Senators violate their oath to uphold the Constitution by supporting a bill they honestly believe does not violate the Constitution, even if the Supreme Court later rules the bill unconstitutional. Thus, as long as a good faith argument can be made under existing law that a bill is constitutional, those who support a bill have done their (oath-imposed) constitutional duty. At that point, it’s incoherent for another Senator to claim to support the substance of the bill but oppose it because it’s unconstitutional: he can claim it’s constitutional in good faith, based on the arguments the other Senators have advanced, and it’s for the Supreme Court, not Congress, to decide which of several viable good faith arguments is the most convincing.
The utility of “constitutionality” rhetoric to O’Donnell and others is that it allows them to oppose legislation (like health care reform) without taking potentially inconvenient policy positions on the desirability of the legislation.
September 22, 2010, 10:56 pmDavid Bernstein says:
That’s not the least bit incoherent. You can just as easily say almost the opposite: that the USSC should uphold a law that has strong support in Congress and was signed by the Executive because the USSC should assume that the other branches did their constitutional duty, and unless there was a truly egregious error, there is no particular reason for the Court to think that its nine lawyers will have a sounder view of the matter than 100 Senators, 435 Congressmen, and the President.
September 22, 2010, 11:04 pmgeokstr says:
Well, now, there you go. Proof how nutty O’Donnell is. Stupid be-atch actually believes the constitution is important. How retro 1790. Doesn’t she know that Congress don’ need no steenkeen constitution, when it’s controlled by the left?
September 22, 2010, 11:04 pmHastings says:
I can conceive of constitutional norms that would operate this way – that would deem constitutional objections to a bill waived if they hadn’t been raised in Congress – but that’s not the way our system of judicial review has developed, and Senators are aware of that. And of course there are numerous reasons the Court could claim to “have a sounder view of the matter” than Congress and the President – life tenure and a corresponding insulation from majoritarian political passions being the foremost.
September 22, 2010, 11:11 pmPerseus says:
As a hideous monster, Congress is an “it.”
September 22, 2010, 11:14 pmDavid Bernstein says:
That assumes that the public itself is not meant to be a check on the constitutional errors of the government. If it is meant to be a check, then the opposite conclusion would obtain. But I agree with you that our system has developed this way, to the point where Senators do say, “I’ll vote for this bill and let the courts sort out the constitutional issues.” O’Donnell is arguing, rightly I think, that this is improper. If Lithwick had said [i.e., explained why she thinks] that her argument is wrong, or contrary to current practice, I wouldn’t be giving Lithwick [such] a hard time. Instead, she’s arguing that the Constitution itself rebuts O’Donnell’s position, which is sheer nonsense.
September 22, 2010, 11:25 pmMedia Darling says:
Slate and Salon are like MSNBC — at this point you know what you’re getting.
September 22, 2010, 11:25 pmHastings says:
I agree: Lithwick’s argument inheres in Marbury v. Madison, and not the Constitution itself.
September 22, 2010, 11:34 pmStitch Jones says:
It came to a surreal head when Sen. Chuck Grassley asked Kagan directly whether “the Second Amendment codif[ied] a pre-existing right or was it a right created by the Constitution?”—a dog whistle, I gather—to the “Christian Reconstructionist” argument that the right to bear arms comes from God. I guess by way of Moses and Joshua.
It’s almost as if Lithwick thought to herself, “you think O’Donnell is crazy? I’ll show you real crazy.” There isn’t an ounce on intelligible analysis in that paragraph. I don’t believe that Lithwick is dumb, but that paragraph is. Dog whistles? Christian Reconstructionism? Of the author and her subject, which one is supposed to be unhinged again?
It’s got to be pretty hard for Democrats to watch the implosion of their party (and I speak, in large part, from very recent experience.) So bad has it become that the most favorable Congress they are ever going to see is about to abandon DC several weeks early because everything they do results in a greater likelihood that they will be driven from power. But to respond to that reality in the fashion chosen by Ms. Lithwick here, such demonstrates the intellectual maturity of a third-grader. If you’re hell-bent to convince the world that your “side” has a monopoly on reason and rationality, this article is a really bad way to sway intelligent people to that view.
September 22, 2010, 11:40 pmPassing By says:
Where did Lithwick get the idea that courts, and only courts, should be concerned with the constitutionality of legislation?
Lithwick never claims that … it’s merely Mr. Bernstein’s interpretation.
Just two paragraphs later, Lithwick notes that a Congressional committee reporting out a bill must specify the source of Congress’ constitutional authority to enact that bill. She never objects to that requirement in any way; to the contrary, she treats it as obvious and sensible. So Mr. Bernstein’s interpretation of her seems pretty unlikely.
the Supreme Court itself has virtually delegated the determination of constitutionality of various federal legislation to Congress
The Court has set wide boundaries on Congress’ discretion in some areas. Which is very different from allowing Congress to set its own boundaries. The difference seems elementary.
September 22, 2010, 11:50 pmMr. T says:
Lest we forget, this is the same Dahlia Lithwick who assured us of the “mounds of significant physical evidence” that the Duke Lacrosse players were indeed guilty of raping Crystal Mangum.
September 22, 2010, 11:50 pmBlue says:
Here’s what I don’t get about Slate’s judicial coverage. They obviously think it is important as they have Lithwick, Bazelon, and Rosin who all cover the beat. But they are all exactly the same. Not a single variation of thought between the three of them on any issue of jurisprudence.
September 23, 2010, 12:04 amShelbyC says:
Lol. You’re being somewhat facitious, no?
September 23, 2010, 12:06 amShelbyC says:
Lithwick says: “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution?” I have a hard time finding an interpretation of that statement other than that only the courts, and not Congress, should interpret the constitution. If you’ve got one, I’d love to hear it.
September 23, 2010, 12:12 amptt says:
Maybe Lithwick, disoriented by O’Donnell’s odd statement, just had a brain fart.
It is a rather odd policy. Constitutional? I’ll vote yes!
I suppose I shouldn’t complain, though, since legislatively enacted same-sex marriage is the only way “conservatives” will accept the law and, since enacting it by legislation is entirely constitutional, I look forward to O’Donnell’s unreserved support.
September 23, 2010, 12:19 amThrobert McGee says:
NB: the phrase Christian Reconstructionist is itself a “dog-whistle” term — one that’s meant to be heard by hair-trigger Secular Activists and paranoid gay-rights advocates and others of that ilk. Lithwick is hinting that if you believe in a “natural right” to own guns, you might as well be in favor of publicly executing homosexuals.
September 23, 2010, 12:20 amPerseus says:
But Lithwick’s point is that the “rigid, narrow constitutional interpretation” of O’Donnell has been rejected by our enlightened Supreme Court, which has adopted a flexible, broad constitutional interpretation, and thus O’Donnell has no business regarding her constitutional views as being superior to those of the Supreme Court.
September 23, 2010, 12:27 amwhit says:
in my personal experience… i note this difference often in leftwing vs. libertarian and rightwing blogs. on leftwing blogs (a la democratic underground) i see phrases like “grants rights” “creates rights” etc. in reference to the bill of rights. it’s something i noticed, and it keeps reconfirming itself the more i spend on both types of blogs.
we’ve all seen and discussed numerous laws wherein the first question that comes to mind is “how could a majority of legislators pass such a law when it’s so obviously unconstitutional?” this is a recurring theme for me. and the only way it happens is if legislators fail to consider first and foremost whether any bill they are voting for is constitutional. i 100% agree with o’donnell here. the first check against unconstitutional legislation is the legislature. if they don’t pass unconstitutional laws in the first place, we don’t have to rely on judges to later overrule it (often after numerous people have been arrested, charged, or even convicted based on those laws), or as is par for the course on DU blame cops for enforcing it. heck, i can think of some laws on the book in my state that are clearly unconstitutional and they remain there to this day.
a legislator’s first question when thinking about bills and voting for them absolutely should be “is it constitutional?” because if it is NOT, then whether or not it would be good policy is irrelevant.
September 23, 2010, 12:31 amwhit says:
i have to agree with you here. the very idea that it’s a “weird question” for a legislator to consider the constitutionality of their actions in lithwick’s mind at least, is truly scary.
September 23, 2010, 12:33 amKazinski says:
Here is another dog whistle to the “Christian Reconstructionists” that the Supreme Court has already rooted out:
September 23, 2010, 12:41 amAnonymous says:
Yeah. Did you even read the cited article?
Her article on judicial review was moronic. Her article on Crystal Magnum’s allegations against the Duke players was spot on – reserve judgment until the facts are in. Trying to score cheap points on the latter weakens your argument against the former.
September 23, 2010, 12:45 amShelbyC says:
I’m speculating that this was Mr. T’s rather cleverly made point.
September 23, 2010, 12:47 amblah says:
the early congresses considered the constitutionality of legislation ALL THE TIME. postal road debates, tariff debates, etc, etc.
September 23, 2010, 12:48 amptt says:
If you read the entire paragraph from which this snippet is taken, it shows that Lithwick wasn’t talking about what you all think she’s talking about. It’s not a particularly good paragraph or well-formed analysis. It’s even what I would call a pointless “gotcha!” sort of jab, though not as low as this thread.
As you read the rest of Lithwick’s article, it becomes clearer why she’s talking about this and why in this way. Much of the “gotcha!” first impression fades. No such redeeming feature here, sadly.
And I don’t understand why people put “Christian Reconstructionists” in quotes. There is such a movement and some of them call themselves that. It’s not like the punctuation one often finds here about ‘gay “marriage”‘.
September 23, 2010, 12:52 amDan the Man says:
As Orin Kerr has opined over and over again, one should have a law degree before one can give an informed opinion on legal matters like the constitutionality of legislation. Since O’Donnell doesn’t have a law degree, perhaps Lithwick is a Kerrian and thinks O’Donnell should get a law degree first before judging the constitutionality of legislation because otherwise her view on the constitutionality of legislation is uninformed.
September 23, 2010, 1:14 amAllan Walstad says:
If I’m charged with breaking the law–say, against fraud–then a court/jury will deliberate and judge. This doesn’t mean I shouldn’t restrain myself from breaking the law, even if I think the outcome would be positive. Nor in my self-restraint am I claiming to be the ultimate judge of the law. I’m just accepting personal responsibility like an adult.
Rather similarly, it seems to me, members of Congress should restrain themselves from violating the Constitution. This doesn’t make them the final arbiters of what is or is not unconstitutional. But you shouldn’t vote for a law that you believe is unconstitutional, nor should you hide behind shyster lawyer stratagems invoking interstate commerce or the taxing power as a blank check to do whatever you damn well like. If O’Donnell isn’t going to do that, it’s a point in her favor.
September 23, 2010, 1:24 amShelbyC says:
Well, it didn’t fade for me. It seems like she’s been reading a lot of things lefties say about the right, without paying much attention to the actual issues. Anybody who followed the gun debates, for example, should know that talk of a pre-existing right to bear arms has very little to do with anything like “Christian Reconstructionism”.
September 23, 2010, 1:28 ameyesay says:
Dahlia Lithwick wrote, “How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?”
This was in reaction to Christine O’Donnell’s statement, “When I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.”
I agree with others who say that the executive and legislative branches of government have a responsibility to try to follow the constitution, and not just leave that to the courts.
However, O’Donnell’s statement, “When I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional,” seems to be a sine qua non criterion, but to me it’s kind of pompous. She seems to be saying, “Unlike other senators, and perhaps my opponent, I will let the Constitution guide my vote.” This is pompous for two reasons. First, I believe that most other senators, as well as O’Donnell’s opponent, also are guided by the Constitution. Second, presumably nearly all of the thousands of bills and amendments that a senator votes on in every session are [gasp] constitutional. Therefore, a specific litmus test won’t help decide which way to vote, except in rare cases.
Unless O’Donnell has a list of legislation that other legislators voted for, or that her opponent supports, along with colorable arguments that such legislation is unconstitutional, rather than calling her statement weird a more apropos term would be bullshit.
September 23, 2010, 1:48 amzuch says:
Are we talking the same eedjit O’Donnell who doesn’t know the difference between Satanism and witchcraft? Because if we are, I certainly don’t want her deciding what’s ‘unconstitutional’….
Cheers,
September 23, 2010, 1:52 amzuch says:
… to pass laws consistent (or not) with the Constitution. Helps put things in perspective.
Cheers,
September 23, 2010, 1:58 amRoger says:
No, there are a lot of Senators who also failed to learn what Lithwick should have learned in her first month of law school. All Senators have an obligation to uphold the Constitution, not just be guided by it. The rest of Lithwick’s column shows that she misunderstands this point.
September 23, 2010, 2:03 ameyesay says:
Roger, please provide list of senators who either state that they don’t have an obligation to uphold the Constitution, or whose belief that they don’t have to uphold the Constitution can be inferred from their behavior as legislators. Please include such behavior on your list. Alternatively, please provide a reliable source that has this information. Otherwise, please admit that the United States Senate is populated by men and women who believe that they do have an obligation to uphold the Constitution.
September 23, 2010, 2:21 amDavid Bernstein says:
C.J. Marshall would have found such an argument shocking, as would every president of the 19th century. IIRC, every one of them vetoed laws on the grounds that they were unconstitutional, often explicitly ignoring or taking issue with U.S.S.C. precedent. See Andrew Jackson and the National Bank, for example. Abraham Lincoln, to take another example, ran for president on the platform that Scott v. Sandford was mistaken, an odd position if Marbury established that the Constitution is whatever a majority of the USSC says it is.
September 23, 2010, 2:23 amPerseus says:
Spare me your tiresome shtick, “eedjit.”
September 23, 2010, 2:27 am1040 says:
wow. that lithwick sure sounds like an idiot, doesn’t she? good thing her words weren’t excerpted out of context and interpreted disingenuously! (NAAAHT!)
September 23, 2010, 2:36 amPerseus says:
Lincoln went even further in suggesting that Dred Scott v. Sandford was not necessarily binding precedent on the other branches of government (which owed it only “very high respect and consideration”). Lithwick’s model, by contrast, appears to be President Bush (McCain-Feingold).
September 23, 2010, 2:59 amRoger says:
The Senators do not admit to violating the Constitution. But they pass laws without considering the constitutionality of the laws, and leave it to the courts to decide that constitutionality.
September 23, 2010, 3:05 amricky says:
With the departure of Mickey Kaus, there is no longer any reason to visit Slate. You’d find more intelligent, measured, and diverse perspectives in a northeastern liberal arts school PoliSci 101 discussion section.
September 23, 2010, 3:18 amHouse Judiciary Chair says:
As long as someone knows about the “good and welfare” clause, which allows us to do just about anything we want, there’s nothing else in the Constitution that is that important.
September 23, 2010, 4:03 ameyesay says:
Well, Roger, considering how rarely the courts rule that legislation is unconstitutional, it would seem that Congress does a reasonably good job in making legislation that is constitutional.
September 23, 2010, 4:33 ammmm...bOOYA says:
Doing Stanford Law proud. :)
September 23, 2010, 5:10 amD.R.M. says:
Ah, yes. Since judges appointed by the president and confirmed by the Senate usually think legislation passed by the Senate and signed by the president are in accordance with the Constitution, it is clear that the Senate must be acting in accordance with the Constitution.
The actual text of the document? What? No, you don’t actually have to consider that. As long as the politicians and the people they appointed all agree that it’s okay, it’s clearly okay. Growing vegetables in your own backyard for your own consumption is interstate commerce.
September 23, 2010, 5:39 amwhit says:
oh please. you don’t have to have experience investigating sexual assault allegations (as i have) to at least know that this case didn’t pass the smell test from the beginning, and then got worse and worse. this is a woman who had a PRIOR gang rape claim (that wasn’t prosecuted) by 3 men.
hmmm. that’s like getting struck by lightning … twice. and the first one wasn’t even prosecuted… hmm
you had criminal defendants in a serious crime who were jumping over backwards WITH the assistance of counsel to PROVIDE evidence to prosecutors and cooperate with same (hey, you don’t need a warrant, we’ll volunteer our DNA).
etc. etc.
i’m not saying one should have said “those men absolutely did not rape that woman”… although that would not have been entirely unreasonable but you sure as hell could say “this case simply doesn’t pass the smell test, and the lax players are probably innocent”
September 23, 2010, 5:43 amwhit says:
right… because those are obviously related. just like a president who doesn’t know how many states are in the union clearly couldn’t be a former constitutional law professor (rolls eyes)
September 23, 2010, 5:45 amEric Muller says:
Just after the quoted exchange, Grassley clarified that the debate is between those who believe rights come from “the Creator” and those who believe they come from the Constitution.
September 23, 2010, 5:54 amgoodspkr says:
Well said.
September 23, 2010, 6:34 amEric says:
It is a perfectly reasonable litmus test. If the bill is unconstitutional, ie, not allowed under the constitution, then a vote for it is ruled out before any other considerations are needed. If it is constitutional, then you begin to apply other considerations of necessity and policy.
September 23, 2010, 7:14 amDavid Bernstein says:
Thanks for that info. I guess only Christian Reconstructionists believe such nonsense. A good thing they weren’t around when the Declaration of Independence was signed, who knows what sort of idiocy would have blighted our founding document.
September 23, 2010, 7:15 amCatoRenasci says:
Just a side note on Lithwick’s take on Grassley – Kagan:
Our Second Amendment, specifically referring to the bearing of arms, derives from the English Bill of Rights of 1689. The ultimate ratio for bearing arms, of course, is self-defense. Had Lithwick a better legal education, she would know that at Common Law:
Blackstone, Commentaries on the Laws of England III, 4. (1768)
And, in a more limited sense, in the English tradition, the right to bear arms to protect ones rights against even the King goes back to Magna Charta.
It’s shocking how little even our best law schools teach about the historical development of the law.
September 23, 2010, 7:53 amrosignol says:
Having someone else pick up the tab for something that benefits you is always desirable. Unfortunately, this seems to have become one of the core principles of our current system of government.
September 23, 2010, 8:09 amJoe says:
Dahlia Lithwick, though the bon mots of some people who are sources of “interesting” stuff for this blog leads me to question the snark, does get lazy from time to time. Too much shtick, not enough thought.
September 23, 2010, 8:11 amuh_clem says:
The entire paragraph from TFA. As expected, Prof Bernstein is taking things out of context again.
September 23, 2010, 8:12 amDoDoGuRu says:
Because “Christian Reconstructionists” exist in about the same capacity that “Vampires” exist: as a small fringe cult that only unserious people are afraid of.
It’s a dog-whistle term meant to give liberal secularists the vapors.
September 23, 2010, 8:20 amPassing By says:
ShelbyC–I have a hard time finding an interpretation of that statement other than that only the courts, and not Congress, should interpret the constitution. If you’ve got one, I’d love to hear it.
Happy to oblige …
Lithwick’s article is a response to Emily Bazelon, who asked her to decipher Christine O’Donnell’s rather odd views on the constitution. (It’s part of a series captioned “Decoding Christine O’Donnell”.)
Lithwick’s opening paragraph (which Mr. Bernstein quoted in his original post) describes the first time she heard O’Donnell speak. Lithwick thought O’Donnell was claiming Congress has sole or paramount responsibility for determining the constitutionality of its own enactments. Lithwick found that view “weird”, since courts also determine the constitutionality of legislation.
Then, in the next paragraph, Lithwick explains how she later found another interpretation for O’Donnell’s remarks that was somewhat less silly.
That’s it. Pretty simple, eh? Makes the carpet-chewing outrage in the original post and several comments above seem a little over-wrought, doesn’t it?
September 23, 2010, 8:27 amMarty says:
So, would Lithwick not have a problem with Angelo Codevilla’s (tongue-in-cheek?) proposal that a new Republican government (say, 2013) pass a bill of attainder against Obama, Pelosi and Reid, because after all the Supreme Court may find it unconstitutional after it is litigated?
September 23, 2010, 8:28 amTina trent says:
Uh Clem:
I don’t get your point. What is it in the extended quote that contradicts or moderates Lithwick’s blunt misapprehension?
September 23, 2010, 8:29 amPubliusFL says:
I don’t see how that context helps. O’Donnell is talking about her own vote. If Lithwick “wonder[s] a little whether she’s claiming that her view of what’s constitutional trumps theirs,” it sounds like Lithwick is arguing that legislators should cast their own votes in favor of legislation that they believe to be unconstitutional (assuming they believe the legislation is otherwise good policy), if they think that the court would disagree and find the legislation constitutional.
September 23, 2010, 8:33 amTen says:
Lithwick is a statist progressive who obviously spent too much time in the legal cesspool of Reno family law before becoming a darling of the leftist press.
Constitutionality? As the result of excess exposure to family “law” and probably other things, I’m fairly sure she never heard of it.
September 23, 2010, 8:36 amTen says:
Legislatures have staff who’s ostensible function is to vet proposed laws for constitutionality. No, you wouldn’t trust them any more than I would (and I’ve seen the SOB’s operate), but they do exist. That Lithwick misses the opportunity to emphasize this rather essential requirement is a further indication of her ignorance.
September 23, 2010, 8:41 amPassing By says:
So Lithwick was right — Grassley was asking Kagan whether the right to keep and bear arms comes directly from God.
I don’t know whether only Christian Reconstructionists believe such nonsense; but it’s nonsense. The Declaration of Independence doesn’t claim it. The Bible doesn’t claim it. Who, other than the Reconstructionists, has ever claimed it?
September 23, 2010, 9:01 amA.W. says:
lithwick is a political hack. she used to be interesting, but about 5 years ago she descended into complete hackery.
I bet you good money that she railed against Bush for signing “unconstitutional” laws when he was president. but now the democrats are in charge no one is supposed to consider the constitution.
September 23, 2010, 9:04 amAJK says:
You cannot be serious.
September 23, 2010, 9:20 amSDN says:
I sincerely hope that was sarcastic. I also hope that when the military has to fulfill it’s obligation to refuse to obey an unconstitutional order (as they are obligated to do; the “I was only following orders defense died at Nuremburg), they use O’Donnell’s standard rather than yours or Lithwick’s.
September 23, 2010, 9:21 amSDN says:
Copperheads like him are always serious, when they claim that we are NOT “endowed by our Creator with certain inalienable rights, that among those rights are life, liberty, and the pursuit of happiness”. If the right to life does not include the ability to defend that life, then it is meaningless.
At some point, there is going to have to be a “no longer our countrymen” moment, when Americans realize that the Left has forsworn their citizenship, and must be expelled as the Tories were after the Revolution.
September 23, 2010, 9:26 amkarrde says:
Does Lithwick support Congress and President Bush’s work on the Patriot Act on the grounds that the Courts can decide if it is un-constitutional?
Does Lithwick support the bill popularly known as Obama-care, on the thesis that the Courts can decide if it is un-constitutional?
Does anyone who disagrees with either of these policies have that opinion?
September 23, 2010, 9:30 ambpbatista says:
Has any supposed expert on legal matters ever demonstrated her incandescent stupidity on the subject so well?
September 23, 2010, 9:35 amJMHanes says:
The real issue is not O’Donnell’s litmus test, it’s her assertion that, “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” She’s really registering the traditional conservative complaint that judges are legislating from the bench, and Lithwick is voicing the standard liberal response.
The larger error is Lithwick’s. The Supreme Court, alone, is the arbiter of constitutionality; lower courts are discouraged from addressing constitutionality, wherever it’s possible to render judgment on another basis. I believe SCOTUS itself traditionally defers to Congress, where issues lack clarity.
Most of the time, of course, the Supreme Court has no say at all. The Justice’s have no power to intervene unilaterally. They can only test legislative constitutionality when a specific case is brought before them, and with almost no exceptions, the only entities with standing to challenge a law at any level, are those who can demonstrate actual, substantive, harm ex post facto.
A great deal of unconstitutional harm can and does, in fact, occur before SCOTUS has a chance to weigh in — if that opportunity ever even arises. Constitutionality thus seems a legitimate, indeed, compelling, legislative concern.
September 23, 2010, 9:44 amBlue says:
That’s actually what surprised me the most about her comment; I’m staff at a state legislature and all I can say is that we take the obligation to ensure constitutionality (both with state and Federal) quite seriously. That’s not to say our proposals might not push the envelope from time to time–but those grey area cases are definitely situations where we would put a bunch of red flags up about the potential problems that could develop.
September 23, 2010, 9:45 amShelbyC says:
The declaration certainly claims it, in fact I’d imagine that just about everybody who believes in God believes it. The view that rights come from the Constitution is ridiculous, to believe that, you’d have to believe that slavery was totally cool until the passage of the 13th amendment, instead of believing that we passed the 13th amendment because we figured out that slavery violated peoples rights.
September 23, 2010, 9:48 amShelbyC says:
Plausable, although your interpretation seems a little less charitable to Ms. Lithwick than DB’s. Personally I’ll go with the more charitable view.
September 23, 2010, 9:50 amFat Man says:
Bingo.
September 23, 2010, 10:09 amSteveMG says:
We’ve reached a new level of partisanship when a candidate for elected office is criticized for saying that she would never vote for a law she believed is unconstitutional.
Imagine what her critics (and I’d join them) would say if she stated, “I don’t consider the constitutionality of laws I vote on or author; I’ll let the courts handle it.”
Yes, tribal politics and all that; but at some point the tribes have to stop the ritualistic sacrifices of the other.
September 23, 2010, 10:16 amPassing By says:
AJK–You cannot be serious
Yes, I’m quite serious … it’s a fact. The Declaration of Independence does not claim that God directly endowed us with a right to keep and bear arms. If you believe the contrary, then cite the text. (But read the rest of this coment first, to save yourself some wasted effort.)
SDN–they claim that we are NOT “endowed by our Creator with certain inalienable rights, that among those rights are life, liberty, and the pursuit of happiness”. If the right to life does not include the ability to defend that life, then it is meaningless.
You seem to believe that a God-given right to self-defence somehow implies a God-given right to keep and bear arms. That’s a strong claim, and far from obvious. Why don’t you try making a logical argument for it, instead of ranting?
SDN–Copperheads like him … At some point, there is going to have to be a “no longer our countrymen” moment, when Americans realize that the Left has forsworn their citizenship, and must be expelled as the Tories were after the Revolution.
This is the kind of mindless abuse that used to people banned from this website.
September 23, 2010, 10:20 amFormer Army MP says:
On one hand, we all know that Lithwick is just a mouthpiece for the left wing of the democratic party. This is yet another ‘Dog bites man’ story, proving she will say or do anything to defend her side and attack the other side.
On the other hand, these blogs are worth printing, because they point out the facts to the public with little overall cost (by little overall cost I mean the bloggers have tenure–if they want it–so they won’t suffer much in the way of vengence), while getting the information out to the public.
I am not a big lover of jumping to the nazi thing on the internet–however, the “Big Lie” is a real risk where one side, Lithwick’s, has access to 90% of the media. Her constant string of lies mixed with half truths could become ‘fact’ in the public’s mind just because she is allowed to repeat them over and over–not only unchallenged but lauded by her media allies.
September 23, 2010, 10:21 amDon Meaker says:
Every military officer takes an oath to preserve, support and defend the Constitution. Our training tells us that this requires us to review our acts, and restrain ourselves from acting contrary to the Constitution.
September 23, 2010, 10:22 amScott Scheule says:
One of Mark Tushnet’s arguments in favor of taking away judicial review away from the Court is that, if the Court were out of the judicial review business, other parts of the government might take the onus upon themselves, which O’Donnell seems to be in favor of.
September 23, 2010, 10:23 amDon Meaker says:
If one were not to defend ones life and property with arms, what would one use? Toothpicks?
I hold that the Constitution envisioned and demanded private ownership of crew served weapons, not just individual weapons. The Letters of Marque and Reprisal clause provides authority to enable Privateers. What is a privateer ship but a armed vessel, a crew served weapon? With the critical contribution of Privateers to the Revolutionary war, as documented by Patton’s recent book, that is dispositive.
The Militia act of 1792 required private ownership of Muskets, Pistols (each mentioned three times) and artillery (mentioned 4 times).
The most recent use of Letters of Marque and Reprisal was in 1941, when the Goodyear blimps were sent on west coast submarine patrol after Pearl Harbor was attacked.
September 23, 2010, 10:29 amKurt says:
I think the context makes it even worse. “Not a lot of room for checks and balances”? Lithwick is the one who just told us there are no checks and balances, and that responsibility for determining constituationality falls 100% on the legislature, and 0% on Congress.
In fact, as noted by others upthread, both Congress and the judiciary are on relatively equal footing. If both branches think a law is constituational, it is enacted and upheld. If either one thinks a law is unconstitutional, it either does not pass or is struck down.
If O’Donnell and enough of her colleagues think a law is unconstitutional then yes, their view “trumps” the judiciary. What’s so hard about that?
September 23, 2010, 10:35 amKurt says:
Substitute “judiciary” for “legislature” above. Oy.
September 23, 2010, 10:42 amAJK says:
You’re right, of course, but the Declaration certainly does claim that our Creator endowed us with “certain rights” (the details of which are not exhaustively specified). That being the case, I don’t thik there’s anything extreme or even particularly notable about claiming that any given constitutional right originates from the Creator.
September 23, 2010, 10:44 amJRC says:
I think it’s fascinating how some people are finding a non-controversial statement–I intend to follow my oath and not support any legislation that is unconstitutional–controversial based upon the person who said it.
As to Lithwick, it seems pretty clear that she believes (1) a requirement that courts decide constitutionality is “in the Constitution” and (2) a legislator has no responsibility for determining whether a law is constitutional before voting for it. If she doesn’t believe these things, as some are suggesting, then why would she find it “weird” that O’Donnell would pledge to make such a determination before voting for it?
September 23, 2010, 10:46 amarbitrary aardvark says:
The new GOP pledge, a draft of which has been published by wapo here (pdf) takes a position similar to O’Donnell’s. I expect we’ll see it slammed in Slate shortly.
September 23, 2010, 10:47 amThis is our Pledge to America.
We pledge to honor the Constitution as constructed by its framers and honor the original intent of those precepts that have been consistently ignored – particularly the Tenth Amendment, which grants that all powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Seems to me like the constitution-in-exile folks are trying to take over the government.
Ten says:
I appreciate the confirmation, as well as your perspective.
We don’t know one another so this isn’t personal, but it’s still remarkable that, in the mad rush to product yet thousands more laws, and having so obviously and so frequently shirked their oaths, the congress critters charged with carrying out the somber duties of those oaths discharge that duty to others, who, as you allude, by their own assessment find that they’re pushing envelopes.
Lithwick has something of a family law background, and that in one of the worst family law towns on earth — not that the entire federally-prescribed nightmare of forced redistribution of children and resources we call family court is much different; it is surely not fundamentally different. Were even a shred of constitutionality applied to the for-profit, full-frontal-assault-on-the-individual debacle enabled by Title IV-D, the VAWA, and basically the Welfare State, it simply wouldn’t exist. Not in the face of a strict constitutionality, not ever.
Obviously it missed any constitutionality vetting. One asks what else did.
Given that “constitutionalizing” law is one of, if not the forefront for protecting the individual’s most fundamental rights, it’s a little disconcerting that it’s left up to the vagaries of individuals secondary to the oath-takers themselves…
September 23, 2010, 10:53 amInsufficiently Sensitive says:
If individuals run for and win election to Congress, there’s little other ethical reason for doing so than to propose and emplace laws that shall govern the doings of the country. It would be anti-ethical for any Senator or Congressman to take a seat without a serious concern for the rules of the game, beginning with the Constitution. For Lithwick to be ignorant of such responsibility is grim evidence of her own lack of responsibility as a ‘public intellectual’.
September 23, 2010, 10:55 amfwb says:
Ah if only folks were widely read or could read:
On the requirements of a Legislator to remain
obedient to the Constitution.
185. …”The case is different with the legislator and executive. He is bound to support the constitution, – to uphold it as one of the pillars to an edifice. He is under the Constitution, not above it. He cannot support it by doing an act repugnant to it. ‘His public office is a public trust.’ If he doubts his power to do under the authority of the Constitution, he is bound to resolve the doubt against the act, not in favor of it.”
“Mr. Cooley thus states it: ‘Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take a solemn oath to obey and support it. When they disregard its provisions they usurp authority, abuse their trust and violate the promises they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution is to treat as of no force the most imperative obligations any person can assume. … A witness in court who would treat his oath thus lightly, and affirm things of which he was in doubt, would be held a criminal.
Indeed, it is because the legislature has applied the judgment of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts and give it their support.’”
“He holds the same views as to the duty of the President, and maintains that the President, even where the judiciary has sanctioned the constitutionality of an act, is not only duty bound to give his approval to a similar act, but may, in consonance with his duty, withhold his approval. It follows from this, that a legislator cannot justify a vote for a law on the ground that as judge he would not declare it void. The legislator crosses no forbidden line when he refuses to enact what he believes is repugnant to the constitution. The judiciary does cross a forbidden line where it declares a law void, unless it be without doubt repugnant to the Constitution. The legislator is never warranted in voting for a law he does not believe the Constitution sanctions, to support which he has sworn as an affirmative duty, not that he will not pull down the pillars of the edifice, but, as one of the many pillars, he will uphold it.”
“In the case of the law-maker, the question to be asked is: ‘Have I the right under the Constitution to pass this act ?’ The onus is for him to show his authority. In the case of a judge, the question is: ‘Is the law clearly unconstitutional ? In annulling the law in support of the Constitution will I transcend my judicial functions and usurp the legislative; or is the repugnancy so strong that I will only act judicially in annulling the effect of the law, and not transcend the boundary of my power ?’ The burden shifts in the two cases. The legislator must show that he has the right; the judge must show the legislator was clearly wrong.”
“Hence the law-maker may not justify a vote for a measure which as judge he could not declare void; but, if the judiciary declares such an act unconstitutional, it should forbid the law-maker to pass similar legislation. On the other hand, though the judiciary cannot declare a law unconstitutional because not clearly repugnant, it does not justify the law-maker in voting for it.”
The Constitution of the United States: A Critical Discussion of
its Genesis, Development, and Interpretation, John Randolph
Tucker, LL.D., 1899. ISBN 0-8377-1206-8
Cooley on Constitutional Law, Pp. 153-54. 161-63., Treatise on
the Constitutional Limitations which Rest upon the Legislative
Power of the States of the American Union, Judge Thomas Cooley,
1868.
Thomas M. Cooley, LL.D., General Principles of Constitutional Law
September 23, 2010, 11:00 amin the United States of America, (3rd ed. 1898).
Thorley Winston says:
Just so we’re clear about this – we have members of Congress and presidents who have created laws (e.g. McCain-Feingold) that they thought may have been unconstitutional (at least in part) and said “let the courts sort it out.”
We’ve had members of Congress vote for legislation (e.g. Harry Reid) and then later complain when the courts uphold that same legislation as constitutional.
We’ve had recent laws of thousands of pages in length in which the sponsors later claimed that they weren’t aware of what was in the bill (e.g. Dodd’s financial bill) after it was made into law or said “we need to pass the bill so we can find out what’s in it” (e.g. Obamacare).
I’d say that O’Donnell is at least a step in the right direction on this one.
September 23, 2010, 11:01 ampete the elder says:
Congressman Phil Hare when asked which part of the consitution allowed for the recent Health Care bill: “I don’t worry about the Constitution on this.”
September 23, 2010, 11:06 amThorley Winston says:
I wouldn’t be so sure considering how many legislators vote for bills that are hundreds or even thousands of pages in length and are told by their leadership that they have to “pass it so we can find out what’s in it.”
September 23, 2010, 11:19 amzuch says:
What other powers (of any significance here) do you think Congress has? They can pass laws, and several other things ancillary to that power. Do you think that it’s never a question as to whether such laws are consistent with the Constitution, or simply not important?
Cheers,
September 23, 2010, 11:20 amFalafal Al Kabob says:
Looks like Lithwick had a different view in 2008 http://www.slate.com/id/2198846/
“It may bear repeating that the Constitution matters”
Quick, she sounds like O’Donnell the nut!
September 23, 2010, 11:22 amzuch says:
… which undisputed and unarguable fact obviously makes anything she says wrong/right/deluded/percipient/ingenious/stoopid [pick one that confirms your bias]….
Cheers,
September 23, 2010, 11:28 amzuch says:
Quite the comment on a post concerning constitutionality….
Cheers,
September 23, 2010, 11:31 amWidmerpool says:
I stopped reading the post after “Dahlia Lithwick” in the headline. David should do a post about why ad hominem reasoning is efficient and logical when dealing with the multitudinous chatter of the internet and the need to pre-emptively filter out certain voices in the interests of rational ignorance. Ms. Lithwick, it seems to me, long ago demonstrated that she was a worthy candidate for filtering and it’s simply unfair to keep picking on (as opposed to ignoring) her.
September 23, 2010, 11:32 amrichard40 says:
You misinterpreted this federalist paper quote. Its real purpose is not to say that legislators should not consider whether their legislation is constitutional, but to say that since they want to please their voters, too often they will not. Then you need the independent judiciary to limit them. Every high government official swears an oath to the constitution, and thus all should try to make sure their actions dont violate it. The only difference with the supreme court is in their case, making sure no government nlegislation or action does not violate it is one of their main reasons for being.
September 23, 2010, 11:43 amCromagnum says:
It would be great to hold poluticians to thier oath, give them skin-in-the-game
If they vote for something that is unconstitutional, there should be some form of punishment.
September 23, 2010, 11:44 amyguy says:
How can a legislator – or anyone under a constitutional oath – uphold the Constitution without interpreting it?
September 23, 2010, 11:57 amPliny the Elder says:
Larry Tribe disposes of the Lithwickian point of view in his book Constitutional Choices. And all I will say is that his being a Harvard law prof and successful litigator and her being a family law attorney in Reno and pundit gives me some faith in God.
September 23, 2010, 12:09 pmTom Moore says:
I have a friend who is a former member of the Georgia legislature. He will tell you straight up that legislatures individually do not believe it is their job to determine if an act is constitutional. In fact, they don’t care.
September 23, 2010, 12:15 pmSeamus says:
Did you miss clause 3 of Article VI? (“The Senators and Representatives before mentioned, and the Members of the several state Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”)
September 23, 2010, 12:19 pmSeamus says:
Just after the quoted exchange, Grassley clarified that the debate is between those who believe rights come from “the Creator” and those who believe they come from the Constitution.
Among those lining up with the Christian Reconstructionists would be John F. Kennedy: “And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe—the belief that the rights of man come not from the generosity of the state, but from the hand of God.”
September 23, 2010, 12:25 pmStitch Jones says:
JFK only said that because the Pope made him say it.
September 23, 2010, 12:30 pmAlast says:
If the House or the Senate were to adopt a rule that required all bills to state in their findings, the provision of the constitution that gives Congress the power to enact that legislation, there is no constitutional problem with that. Committee reports already do that.
The question is what would such findings do? I think little, as a construing court would still muck through anything it can find to justify an act of Congress, regardless of whether the findings in the bill states the power to enact it come from clause YYY. If the bill specifies it is enacted under the Commerce Clause power, and the courts reject the Commerce Clause as applicable, but they will still look to the Taxing Clause or anywhere else they want to save the legislation from unconstitutionality.
September 23, 2010, 12:30 pmzuch says:
I don’t think so. Note the bolded parts; it sounds more like he’s suggesting that the courts should be the arbiter of disputes between the people and rogue legislatures that might exceed their constitutional authority.
Cheers,
September 23, 2010, 12:43 pmSonicfrog says:
I don’t have time to read all the comment, so I may be repeating someone else’s point.
Jefferson and Madison both hated the creation of judicial review by John Marshall. The thinking at the time was that the Constitution was so clear, there would be no way a legislator could pass a bill that was unconstitutional. If by chance that happened to do so (thought it couldn’t in their minds, it just wasn’t possible) the President would be wise and veto it based on the obvious unconstitutionally of the bill. If the President failed to do so, as in the case of the Alien and Sedition Acts signed into law by John Adams, the system itself would correct the error and bring leaders into power that would rescind that legislation. And that did work for Jefferson*.
It’s interesting to note that when Marshal wrote the opinion for Marbury v Madison, Jefferson was appalled that the court had usurped the concept of judicial review. Yet, as much as Jefferson hated it, neither he nor Madison (as far as I can tell) ever tried to push for a constitutional amendment to nullify that power. That make me believe that even though Jefferson is on record ridiculing judicial review, he never the less saw the necessity of it.
*Jefferson and Marshall were cousins, but that didn’t stop TJ from considering JM a country rube, and held him in contempt. To say they didn’t get along at all is an understatement.
September 23, 2010, 12:56 pmShelbyC says:
Er, ya got me. I haven’t been arguing that it’s possible.
September 23, 2010, 12:59 pmErm. O’Donnell was actually correct about Britney Spears. | RedState says:
[...] has a better grasp of Constitutional law than Dahlia Lithwick. Which is admittedly apparently not that hard: indeed, you have to wonder whether Lithwick’s read the actual oath that Senators have to [...]
September 23, 2010, 1:09 pmTen says:
Typically, when disputing and arguing facts that well indicate that the target is indeed what has been charged, one, you know, disputes and argues.
Claim: Lithwick is a statist progressive who obviously spent too much time in the legal cesspool of Reno family law before becoming a darling of the leftist press.
Which, as it happens, obviously does not make anything she says wrong/right/deluded/percipient/ingenious/stoopid — pick any one that fails to confirm the strawman you just erected because any would do.
September 23, 2010, 1:13 pmShelbyC says:
Well, as the linked article about the Duke case demonstrated, Lithwick is typically a bright and inciteful commentator who’s output somehow turns into idiotic ravings only when the subject becomes political.
September 23, 2010, 1:19 pmyguy says:
AFAIK, Jefferson never said anything against judicial review in a general sense. What he objected to was Marshall’s insinuation that SCOTUS is the last word on constitutionality.
September 23, 2010, 1:20 pmCalifornio says:
After a survey of recent events, Lithwick determines that the biggest threat to the USA are ….christians. No, really. Just ask Daniel Pearl.
September 23, 2010, 1:48 pmgasman says:
And and congressman or senator who admits to voting for a law they believe to be unconstitutional has just violated their oath, ‘true faith and allegiance’ to the constitution. They should be tried as a traitor.
September 23, 2010, 1:58 pmAC1340 says:
In California, apparently the last word on constitutionality is the not from the courts, but from the Attorney General and/or Governor. To quote Lithwick, “how weird is that?”
September 23, 2010, 1:59 pmLN says:
The #1 cause of death in America is getting beheaded in Iraq.
September 23, 2010, 2:00 pmStitch Jones says:
The #1 cause of death in America is getting beheaded in Iraq.
Unless you’re a progressive. In which case the leading cause of death is violence perpetrated by Christian Reconstructionists. Just read Sullivan- at least the posts that don’t focus on Palin’s labia.
September 23, 2010, 2:06 pmptt says:
The FBI tracks some extremist “Christian” groups. To my knowledge, they don’t track vampires. I guess if they were really “serious” about their jobs, they would.
September 23, 2010, 2:13 pmrilkefan says:
Sadly the people taking the above line just can’t read. The question is what O’Donnell’s “litmus test” is. And the answer isn’t, “Is this good policy, based on principles x and y?” or even “Is this good policy etc. and do I think it’s constitutional?”. Surely everyone here is aware that what’s constitutional is a matter of heated controversy on many important issues of the day, and in most of what Congress does in practice the germane question is, “Is this law stupid or risky or badly written?” – and O’Donnell isn’t qualified to judge even non-controversial issues’ constitutionality, and doesn’t have to, because someone else much better qualified will have – unless O’Donnell thinks Congress is or should be the final arbiter. I’m sure that’s what Lithwick was thinking – perhaps you may disagree, but you can’t reasonably say that’s definitely not what she was thinking. That’s why she immediately goes on to talk about O’Donnell apparently not believing in the courts’ role in determining constitutionality. Which would make O’Donnell’s litmus test consistent, but, yes, weird.
September 23, 2010, 2:32 pmmikeyes says:
Professor Berstein says that “Senators swear an oath to uphold the Constitution.”
The oath never mentions the word “uphold” although that may be semantics. The Constitution does outline pretty clearly the duties of the Congress and strongly implies that by supporting the Constitution that Congress members should consider the constitutionality of every act that they promulgate.
Here is the oath which is given to all officers.
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
Given that the Congress has the job of passing legislation, assessing the constituionality of each law sounds like a given. But since each member probably has his or her own ideas about what that means, it also seems to be moot and that politics will play a greater part in passage of each law. Sort of like the T-shirt says: “Kill them all and let God sort them out.”
I’d also like to point out that the same oath is given to military officers and others in State and Federal offices. I doubt that it tells each individual military officer that his or her job is to interpret the Constitution as each seems fit. I am referring to the LTC Lakin trial in which an officer decided to not obey selected orders because he did not think that the President was actually the President. His defense is that the his oath compells him to disobey a legal order based on his individual belief.
September 23, 2010, 2:33 pmyguy says:
How can officers support and defend a document unless they understand it, and how can they understand it unless they interpret it for themselves?
September 23, 2010, 3:15 pmJRC says:
I don’t think anyone can seriously argue that O’Donnell is taking the position that she will vote for legislation irrespective of whether it’s good policy as long as it’s constitutional. Quite obviously, her position is that, even if she believes it is good policy, she will not vote for it if it is not constitutional.
I don’t know what she was thinking but I know what she wrote. She wrote it is “weird” that O’Donnell would make a determination as to constitutionality before voting on legislation because it’s in the Constitution that the courts do that. I can reasonably say that she meant what she wrote. If she believes that a senator should make such a determination as to constitutionality before voting on legislation (which you apparently do not) then she would not find it “weird” that O’Donnell would plan to do so. Moreover, it is not at all apparent that O’Donnell believes the court has no role in determining constitutionality of legislation. Again, it’s pretty obvious she is referring to situations where the court engages in judical activism.
My reading skills do not include the ability to divine the thoughts in the writer’s head. I can only go with what the words say.
September 23, 2010, 3:51 pmSF Alpha Geek says:
Short answer: You keep using that word. I do not think it means what you think it means.
Somewhat longer answer. That’s not a strawman, that’s an argumentum ad hominem. To the extent that their arguments can be understood as circumstantial rather than abusive ad hominems, they might even be making a valid point about Lithwick’s position.
September 23, 2010, 4:01 pmmikeyes says:
They can, they just can’t disobey a lawful order as a result of their own peculiar interpretation. Otherwise good order and discipline would turn to chaos and the “protect” part of the oath would be violated (not to mention the “without mental reservations” section.
September 23, 2010, 4:05 pmMark Horning says:
Similarly,
the Judiciary has an obligation to overturn laws broght before them that are unconstitutional,
the Jury has an obligation to refuse to convict a person charged with an unconstitutional law, and
the States have an obligation to not enforce unconstitutional federal legislation.
It’s not just the guys in the black robes.
September 23, 2010, 4:12 pmyguy says:
Meaning what, exactly?
September 23, 2010, 4:38 pmJack says:
So, rather than inform yourself and demonstrate it to everybody else, you make a meaningless commitment as to your uninformed belief.
September 23, 2010, 4:41 pmpunslinger612 says:
Enlisted military also take the same oath upon enlistment. I took that oath a number of times. This adds a huge number of folk to the list of those taking the oath.
So, what does the oath mean? At what level of disagreement with a law or order is the threshold crossed that you are compelled to do something to defend the Constitution?
What actions are you permitted to take? What constraints apply? What level of force is justified?
Or is the oath meaningless drivel? If not, where is the meaning?
September 23, 2010, 4:52 pmiEatDC says:
This post is cranky. Taking one line of a piece from 2008 and spinning it to fit whatever you’re trying to say above is unseemly. Anyway, the gals on Slate responded to reader comments about that Constitutional bit. Time for another update.
http://www.slate.com/id/2268261/entry/2268543/
September 23, 2010, 4:55 pmmikeyes says:
Peculiar to the person.
The issue is one of good order and discipline. When you join the military you take on certain obligations freely including obeying orders. As long as the orders are legal and from a superior the “defacto officer” doctrine states that you have to follow them.
Military officers are have the authority to give orders based on their commission from the Congress and laws passed by Congress. If an officer decides that this is not correct, he still has to follow the law and the Constitution. The Constitution gives these powers to Congress :
“To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;”
Those rules and laws provide the authority for giving orders and the duty to obey them without question as long as they do not ask you to perform a criminal act. It is part of the obligations of a military officer which are different from the obligations of other officers.
September 23, 2010, 5:03 pmStitch Jones says:
The “update” referenced above is more hilarious than the original nonsense. From the update, “O’Donnell should like this, because it acknowledges Congress and We the People’s roles in interpreting the constitution. And yet somehow one feels like she wouldn’t, because it does not have the correct Biblical resonance—the feeling of ‘constitutional repentance,’ as she puts it.”
In other words, O’Donnell’s point is perfectly clear and valid, but because of the evangelical boogeyman hiding in the closet, we should ignore what she actually said and pretend it has no bearing on the discussion.
Brilliant!!!
September 23, 2010, 5:14 pmmikeyes says:
Actually the enlisted oath is a little different as it includes a specific section concerning the UCMJ and obeying orders:
“I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
September 23, 2010, 5:19 pmwhit says:
except that’s a … what do they call that? um… false dichtomy…
there are other positions. for example, one can also believe that rights do NOT come from the constitution, but also be an atheist. iow, believing in natural rights, iow that the constitution RECOGNIZES pre-existing natural rights, does not necessitate a belief in a creator, god or gods.
September 23, 2010, 5:32 pmwhit says:
again, it shows that lithwick is an idiotic hack , as noted.
what odonnell says does not imply that her judgment TRUMPS the judiciary. it implies that her (and other legislator’s) judgment PRECEDES it. the FIRST check against unconstitutional law is a legislature that considers first and foremost whether any bill they propose/vote for IS in fact constitutional.
if enough decide not to enact a bill because they think it’s unconstitutional, that says nothing about trumping the scotus. it says merely that they are the first check.
September 23, 2010, 5:36 pmwhit says:
actually, saying a Creator (note it’s capitalized) has endowed us with certain rights DOES say it. quite clearly.
one doesn’t have to believe IN a creator to believe in natural rights, but it’s clear the DOI does say that the reason we have these rights is because of that creator.
September 23, 2010, 5:45 pmwhit says:
and police dept’s of any decent size also have lawyer(s) whose job is to decide on constitutionality (under both state and federal standards) on any procedure we intend to enter into our procedures manual.
and just as with the legislature. they are sometimes (to put it mildly) wrong…
September 23, 2010, 5:49 pmwhit says:
thank you. i’ve long made the claim that a greater erosion (at least as applies to the average citizen) of constitutional rights has occurred due to the “war on domestic violence” than the war on drugs.
September 23, 2010, 5:54 pmTMLutas says:
Do not be so sure of the unanimity of no votes. After all, President Bush signed McCain Feingold while holding that parts of it were unconstitutional.
September 23, 2010, 5:55 pmyguy says:
What if that peculiarity is a consequence of the officer being the only one with the stones to stand on constitutional principle?
No officer swears an oath to any doctrine – or if he does, his constitutional oath takes precedence.
September 23, 2010, 7:16 pmpunslinger612 says:
Thank you Mikeys,
Does this mean that an enlisted can successfully use the “just following orders” defence while a commissioned officer cannot?
“I, (name), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
September 23, 2010, 7:42 pmFormer Army MP says:
Yes, it would take one heck of a clear cut case of illegal orders to fry an enlisted for obeying the direct orders of a commissioned officer.
September 23, 2010, 8:00 pmmikeyes says:
The law and the precedents are very clear, an order is legal unless it is facially criminal (i.e. “kill all those villagers”) and has to be obeyed even if it turns out that the superior officer is not directly in the chain of command. Officers have to follow the same rule and there are a number of precedents for that.
The UCMJ is part of a law promulgated by Congress acting under the specific guidance of the Constitution. As a result, many of the rights taken for granted in civilian life are not present in the military. The Constitution makes this exception in order to maintain good order and discipline. Otherwise you would not have to obey any orders leading to chaos. This would undermine the purpose of the military to protect our country and the political system it holds dear (namely the Constitution.)
As and aside, DADT is a specific law regarding the military. There may be a Constitutional exception to equal protection as a result. Just a guess on my part.
September 23, 2010, 8:09 pmFreedom's Daughter says:
Stellar Grad, is she not?! From a so-called “prestigious” set of schools – Yale and Stanford to be precise. Yet she has never:
Read the Constitution, and
Does not know that We the People are the government! The buck stops with US.
If I were her, I’d demand a refund for the education, or lack thereof.
September 23, 2010, 9:53 pmMike Lorrey says:
No, it wasn’t “spot on”. A “spot on” argument would remember the accused is innocent until proven guilty. A trial is a trial as much of the facts and of the law as it is a trial of the accused. Dahlia’s predisposition to assume the white boys were guilty until proven innocent are an ironic reversal of the sort of travesties of justice once visited on black defendants in that area of North Carolina. I doubt she appreciated the irony.
September 24, 2010, 2:16 amwhit says:
first of all, trials don’t (generally) prove people innocent. a jury cannot even render an “innocent” verdict.
and second of all, as far as the LAW is concerned the accused is presumed innocent until proven guilty. it doesn’t therefore follow that a commentator can’t come to a conclusion, or at least lean one way or the other. read that again, there is a PRESUMPTION of innocence on the part of the state. that is not the same thing as saying he/she IS innocent. it says that is the presumption made. those aren’t really the same thing, if you think about it.
let’s also remember a jury can find somebody not guilty because they weren’t privy to some sort of excluded evidence that a commentator IS privy to , and could prove beyond almost any doubt the person is guilty, if by guilty you mean “they obviously did it”
the reality with the duke case was that it smelled bogus from the beginning, and it only became more and more clear that the suspects were almost certainly INNOCENT (not merely not guilty) as time went on
this case was so blatant, that we had the rare example of the prosecution (but not nifong) coming out and saying in a public conference, that they were innocent.
September 24, 2010, 4:17 amDavid M. Nieporent says:
Agreed. That’s how the phrase “litmus test” is used in this context. Consider when a presidential candidate discusses whether he has an abortion-related “litmus test” for judicial nominees: certainly he isn’t discussing the notion that his only criterion is whether (or not) the judge supports Roe and its progeny, that he would nominate everybody in the country who passes that test. He’s discussing whether the nominee’s abortion views are a disqualifying factor.
That’s all O’Donnell is saying, quite obviously: that she’ll first consider whether a bill is constitutional, and if it fails that test, will vote against it regardless of content; if it is constitutional, then she’ll decide whether it’s good policy.
September 24, 2010, 6:10 ambacchys says:
No, it doesn’t make it the carpet-chewing seem overwrought. Lithwick’s interpretation of O’Donnell’s claim is bizarre. There’s nothing in the comment she quotes which suggests O’Donnell is saying that only Congress has the power to intrepret the Constitution.
Lithwick’s comments bring one to mind of Speaker Pelosi’s response to question about the constitutionality of health care reform, “Are you serious?”
September 24, 2010, 9:37 amPassing By says:
bacchys –
Mr. Bernstein’s original post, and the 150-comment thread that folled, are full of carpet-chewing outrage over Lithwick’s (allegedly) saying something that she never said and she obviously doesn’t believe.
Which was my point from the beginning.
We can debate the merits of her actual views if you’d like; but that’s a whole ‘nother topic.
Not sure about your point here. As I noted on another thread, Pelosi’s response was entirely appropriate in context.
September 24, 2010, 12:32 pmCoughs, clears throat, then says:
Stellar post. Thank you from a non-lawyer. This bit of history really transforms much of what I’ve read about the Second Amendment. It’s not about militias, it’s about “a primary law of nature,” self-preservation.
I’m a suburban libertarian dad, raised by a liberal professor, and I’d never own a gun. The militia thing always seemed silly. But I can subscribe to self-preservation as a primary law of nature, and can now niftily dispose of any statist nitwit on the topic with that wonderful phrase and a reference to “the English Bill of Rights of 1689.”
September 24, 2010, 1:27 pmbacchys says:
I’m not sure how else to take Lithwick’s comment other than she thinks that only the courts have a role in determining the constitutionality of legislation. She’s mocking O’Donnell for saying she would use the constitution as a litmus test in determining her vote. One would hope that every member of Congress has that litmus test already, but Lithwick’s comments would certainly cast doubt on a Representative Lithwick would. After all, it’s “odd” to her that a legislator would have such a thing.
Not sure about your point here. As I noted on another thread, Pelosi’s response was entirely appropriate in context. (Quote)
I though D’Alessandro’s Little Girl’s response was anything but appropriate, and if she doesn’t like questions from media personnel she doesn’t like she should get out of the business. Regardless of who it came from, there’s certainly a better response to give one which reflects- intended or not- a view that the government isn’t bound by the law.
September 25, 2010, 7:53 pmAlan says:
Redundant proof that Lithwick is not a serious thinker.
September 26, 2010, 1:35 amrilkefan says:
Then as claimed above, you can’t read. Words don’t say things – people do. You’re looking at a sentence from a paragraph, guessing at its meaning, and complaining about what you conclude. But you don’t get to ignore other sentences in the paragraph, an important unit of meaning. Unless you’ve gone through the exercise of trying to understand what Lithwick might reasonably be thinking and trying to express, you haven’t actually read what she wrote.
Too few supposedly literate people these days are trained to read poetry, where such considerations are often essential.
September 26, 2010, 2:17 amDude Man says:
Lithwich is a moron. Stop linking to her.
September 27, 2010, 6:08 pmKirk Parker says:
eyesay (2:21am),
Anyone who voted for the VAWA. Anyone who voted for whatever monstrosity the Lautenberg Amendment is attached to. Anyone who voted for (or signed into law) the craptastical abomination that is McCain-Feingold.
September 28, 2010, 11:50 amKirk Parker says:
Clifton,
I’ll bet you find the belt-and-suspenders approach inscruitable too, eh?
September 28, 2010, 12:11 pmKirk Parker says:
Eric Muller,
So that puts Grassley firmly in the camp of the founders, speaking through the words of that notorious Christian Reconstructionist, T. Jefferson.
September 28, 2010, 12:12 pmKirk Parker says:
Coughs,
Don’t be so sure about that–”never” is a long time, and if things continue to deteriorate further…
September 28, 2010, 12:15 pmMelanie Morrissey says:
Lithwick is fortunate to have Passing BY here to cover her various gaffes, logic gaps and hyperventilating. I just hope she throws Passing By an occasional Scooby Snack for being so diligent.
September 30, 2010, 9:53 am